Canada Business Corporations Regulations, 2001 (SOR/2001-512)

• 64 (1) A dissident’s proxy circular shall contain a statement signed by the dissident or a person authorized by them that the contents and the sending of the circular have been approved by the dissident.

• (2) For the purpose of subsection 150(2) of the Act, the prescribed form of statement that shall accompany the copy of the dissident’s proxy circular to be sent to the Director under that subsection is a statement signed by the dissident or a person authorized by them, to the effect that a copy of the circular has been sent to each director, to each shareholder whose proxy has been solicited, to the auditor of the corporation and to the corporation.

65 [Repealed, SOR/2008-315, s. 4]

Financial Statements in Proxy Circular

• 66 (1) If financial statements accompany or form part of a management proxy circular, the statements shall be prepared in the manner described in Part 8.

• (2) The financial statements referred to in subsection (1), if not reported on by the auditor of the corporation, shall be accompanied by a report of the chief financial officer of the corporation stating that the financial statements have not been audited but have been prepared in the manner described in Part 8.

Proxy Circular Exemptions

67 For the purpose of subparagraph (b)(v) of the definition solicit or solicitation in section 147 of the Act, a solicitation does not include a public announcement that is made by

• (a) a speech in a public forum; or

• (b) a press release, an opinion, a statement or an advertisement provided through a broadcast medium or by a telephonic, electronic or other communication facility, or appearing in a newspaper, a magazine or other publication generally available to the public.

• 68 (1) For the purpose of subparagraph (b)(vii) of the definition solicit or solicitation in section 147 of the Act, the prescribed circumstances are circumstances in which the communication is made to shareholders

  • (a) by one or more shareholders and concerns the business and affairs of a corporation — including its management or proposals contained in a management proxy circular — and no form of proxy is sent to those shareholders by the shareholder or shareholders making the communication or by a person acting on their behalf;

  • (b) by one or more shareholders and concerns the organization of a dissident’s proxy solicitation, and no form of proxy is sent to those shareholders by the shareholder or shareholders making the communication or by a person acting on their behalf;

  • (c) as clients, by a person who gives financial, corporate governance or proxy voting advice in the ordinary course of business and concerns proxy voting advice if

    • (i) the person discloses to the shareholder any significant relationship with the corporation and any of its affiliates or with a shareholder who has submitted a proposal pursuant to subsection 137(1) of the Act and any material interests the person has in relation to a matter on which advice is given,

    • (ii) the person receives any special commission or remuneration for giving the proxy voting advice only from the shareholder or shareholders receiving the advice, and

    • (iii) the proxy voting advice is not given on behalf of any person soliciting proxies or on behalf of a nominee for election as a director; or

  • (d) by a person who does not seek directly or indirectly, the power to act as proxy for a shareholder.

• (2) The circumstances described in paragraph (1)(a) are not prescribed circumstances if the communication is made by

  • (a) a shareholder who is an officer or director of the corporation, or who serves in a similar capacity, if the communication is financed directly or indirectly by the corporation;

  • (b) a shareholder who is a nominee or who proposes a nominee for election as a director, if the communication relates to the election of directors;

  • (c) a shareholder whose communication is in opposition to an amalgamation, arrangement, consolidation or other transaction recommended or approved by the board of directors of the corporation and who is proposing or intends to propose an alternative transaction to which the shareholder or an affiliate or associate of the shareholder is a party;

  • (d) a shareholder who, because of a material interest in the subject-matter to be voted on at a shareholders meeting, is likely to receive a benefit from its approval or non-approval, which benefit would not be shared pro rata by all other holders of the same class of shares, unless the benefit arises from the shareholder’s employment with the corporation; or

  • (e) any person acting on behalf of a shareholder described in any of paragraphs (a) to (d).

• 69 (1) For the purpose of subsection 150(1.2) of the Act, the prescribed circumstances are those in which the solicitation conveyed by public broadcast, speech or publication sets out the information provided for in Items 3.2, 3.4, 5(b) and 11 of Part 2 of Form 51-102F5 (Information Circular) of NI 51-102.

• (2) A person making a solicitation referred to in subsection (1) shall send the required information and a copy of any related written communication to the Director and to the corporation before soliciting proxies.

PART 8Financial Disclosure

Interpretation

70 The following definitions apply in this Part.

Canadian GAAP

Canadian GAAP means generally accepted accounting principles as set out in the CPA Canada Handbook – Accounting or the CPA Canada Public Sector Accounting Handbook, as amended from time to time. (PCGR canadiens)

Canadian GAAS

Canadian GAAS means generally accepted auditing standards as set out in the CPA Canada Handbook – Assurance, as amended from time to time. (NVGR canadiennes)

NI 52-107

NI 52-107 means National Instrument 52-107 of the Canadian Securities Administrators, entitled Acceptable Accounting Principles, Auditing Standards and Reporting Currency and published January 16, 2004, as amended from time to time. (Règlement 52-107)

Part V

Part V[Repealed, SOR/2016-98, s. 1]

SEC

SEC means the United States Securities and Exchange Commission. (SEC)

SEC registrant

SEC registrant means a corporation that

• (a) has securities registered under section 12 of the Securities Exchange Act of 1934 of the United States, as amended from time to time, or is required to file reports under section 15(d) of that Act; and

• (b) is not registered or required to be registered as an investment company under the Investment Company Act of 1940 of the United States, as amended from time to time. (société inscrite auprès de la SEC)

US GAAP

US GAAP means the generally accepted accounting principles established by the Financial Accounting Standards Board of the United States, as amended from time to time. (PCGR américains)

US GAAS

US GAAS means the generally accepted auditing standards established by the Public Company Accounting Oversight Board of the United States, as amended from time to time. (NVGR américaines)

Financial Statements

• 71 (1) Subject to subsection (2), the annual financial statements referred to in paragraph 155(1)(a) of the Act shall be prepared in accordance with Canadian GAAP.

• (2) For an SEC registrant, the financial statements may be prepared in accordance with US GAAP.

• (3) to (6) [Repealed, SOR/2016-98, s. 2]

• (7) The financial statements shall contain a note stating whether the statements have been prepared in accordance with Canadian GAAP or US GAAP.

• (8) [Repealed, SOR/2016-98, s. 2]

Auditor’s Report

• 71.1 (1) Subject to subsection (2), the auditor’s report referred to in section 169 of the Act shall be prepared in accordance with Canadian GAAS.

• (2) For an SEC registrant that has prepared its financial statements in accordance with US GAAP and whose auditors are in compliance with the professional practice standards of the Public Company Accounting Oversight Board of the United States, the auditor’s report may be prepared in accordance with US GAAS.

• (3) [Repealed, SOR/2016-98, s. 3]

• (4) If the auditor’s report referred to in subsection (2) is prepared in accordance with US GAAS and is for a financial year that begins on or after January 1, 2011, it shall comply with section 3.8 of NI 52-107, but for the purpose of applying that section,

  • (a) the expression U.S. PCAOB GAAS has the meaning assigned to the expression US GAAS by section 70 of these Regulations; and

  • (b) the expression SEC issuer has the meaning assigned to the expression SEC registrant by section 70 of these Regulations.

Contents of Financial Statements

• 72 (1) The financial statements referred to in section 155 of the Act shall include at least

  • (a) a statement of financial position or a balance sheet;

  • (b) a statement of comprehensive income or an income statement;

  • (c) a statement of changes in equity or a statement of retained earnings; and

  • (d) a statement of cash flows or a statement of changes in financial position.

• (2) Financial statements need not be designated by the names set out in paragraphs (1)(a) to (d).

PART 8.1Fundamental Changes

• 72.1 (1) Despite subparagraph 184(1)(b)(ii) of the Act, the resolutions approving the amalgamation of a holding corporation with one or more of its subsidiary corporations may provide that the corporate name set out in the articles of amalgamation is not the same as that set out in the articles of the amalgamating holding corporation.

• (2) Despite subparagraph 184(2)(b)(ii) of the Act, the resolutions approving the amalgamation of two or more wholly owned subsidiary corporations of the same holding body corporate may provide that the corporate name set out in the articles of amalgamation is not the same as that set out in the articles of the amalgamating subsidiary corporation whose shares are not cancelled.

PART 8.2Disclosure Relating to Diversity

• 72.2 (1) The following definitions apply in this Part.

  designated groups

  designated groups has the same meaning as in section 3 of the Employment Equity Act. (groupes désignés)

  major subsidiary

  major subsidiary means, in respect of a distributing corporation, a subsidiary that

  • (a) has assets, as included in the distributing corporation’s most recent annual audited or interim balance sheet or most recent statement of financial position, that are 30 percent or more of the consolidated assets of the distributing corporation reported on that balance sheet or statement of financial position, as the case may be; or

  • (b) has revenue, as included in the distributing corporation’s most recent annual audited or interim income statement or most recent statement of comprehensive income, that is 30 percent or more of the consolidated revenue of the distributing company reported on that statement. (filiale importante)

• (2) For the purposes of subsection 172.1(1) of the Act, a distributing corporation is a prescribed corporation.

• (3) For the purpose of subsection 172.1(1) of the Act, members of senior management means, in respect of a distributing corporation, the following individuals:

  • (a) the chair and vice-chair of the board of directors;

  • (b) the president of the corporation;

  • (c) the chief executive officer and chief financial officer;

  • (d) the vice-president in charge of a principal business unit, division or function, including sales, finance or production; and

  • (e) an individual who performs a policy-making function in respect of the corporation.

• (4) For the purpose of subsection 172.1(1) of the Act, the following information is prescribed:

  • (a) indication of whether or not the distributing corporation has adopted term limits for the directors on its board or other mechanisms of board renewal and, as the case may be, a description of those term limits or mechanisms or the reasons why it has not adopted them;

  • (b) indication of whether or not the distributing corporation has adopted a written policy relating to the identification and nomination of members of designated groups for directors and, if it has not adopted a written policy, the reasons why it has not adopted the policy;

  • (c) if the distributing corporation has adopted the written policy referred to in paragraph (b),

    • (i) a short summary of the policy’s objectives and key provisions,

    • (ii) a description of the measures taken to ensure that the policy is effectively implemented,

    • (iii) a description of the annual and cumulative progress by the distributing corporation in achieving the objectives of the policy, and

    • (iv) whether or not the board of directors or its nominating committee measures the effectiveness of the policy and, if so, a description of how it is measured;

  • (d) whether or not the board of directors or its nominating committee considers the level of the representation of designated groups on the board in identifying and nominating candidates for election or re-election to the board and, as the case may be, how that level is considered or the reasons why it is not considered;

  • (e) whether or not the distributing corporation considers the level of representation of designated groups when appointing members of senior management and, as the case may be, how that level is considered or the reasons why it is not considered;

  • (f) whether or not the distributing corporation has, for each group referred to in the definition designated groups, adopted a target number or percentage, or a range of target numbers or percentages, for members of the group to hold positions on the board of directors by a specific date and

    • (i) for each group for which a target has been adopted, the target and the annual and cumulative progress of the corporation in achieving that target, and

    • (ii) for each group for which a target has not been adopted, the reasons why the corporation has not adopted that target;

  • (g) whether or not the distributing corporation has, for each group referred to in the definition designated groups, adopted a target number or percentage, or a range of target numbers or percentages, for members of the group to be members of senior management by a specific date and,

    • (i) for each group for which a target has been adopted, the target and the annual and cumulative progress of the corporation in achieving that target, and

    • (ii) for each group for which a target has not been adopted, the reasons why the corporation has not adopted that target;

  • (h) for each group referred to in the definition designated groups, the number and proportion, expressed as a percentage, of members of each group who hold positions on the board of directors; and

  • (i) for each group referred to in the definition designated groups, the number and proportion, expressed as a percentage, of members of each group who are members of senior management of the distributing corporation, including all of its major subsidiaries.